Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Provenzano, J.
Present — Dillon, P.J., Callahan, Pine, Balio and Davis, JJ.
Judgment reversed on the law without costs and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: On the basis of the pleadings and an application for a preliminary injunction, the Supreme Court determined that the proposed expenditure of $346,800 to install noise barriers at a specified location along Norris Drive was "an unauthorized and intended wrongful expenditure of State funds" within the meaning of State Finance Law article 7-A and granted a permanent injunction.
Although State Finance Law § 123-c (4) provides that citizen-taxpayer actions "shall be promptly determined", the record reveals that the court, without a trial, resolved disputed factual issues relating to the level of noise and the properties affected in plaintiffs' favor "on the papers alone", and entered final judgment on the merits. That was error (see, Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 65 N.Y.2d 793).
Since neither party sought an accelerated judgment as a matter of law, we do not reach the issue whether the "facts" found by Special Term would constitute a violation of State Finance Law article 7-A. We note, however, that a citizen-taxpayer action lies "`only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'" (Mesivta of Forest Hills Inst. v City of New York, 58 N.Y.2d 1014, 1016; Kaskel v Impellitteri, 306 N.Y. 73, 79; Fisher v Biderman, 141 Misc.2d 804, 809).
All concur, Davis, J., not participating.